Govia et Al v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | John, J.A. |
| Judgment Date | 17 July 2007 |
| Neutral Citation | TT 2007 CA 27 |
| Docket Number | Criminal Appeal Nos. 2, 3, and 4 of 2006 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 17 July 2007 |
Court of Appeal
Hamel-Smith, C.J. (Ag.); John, J.A.; Weekes, J.A.
Criminal Appeal Nos. 2, 3, and 4 of 2006
Mr. Sean Cazabon for appellant Govia.
Ms. Sophia Chote for appellant Ravello.
Mr. Ricky Rahim for appellant Cadette.
Mr. Bindra Dolsingh for the respondent.
Criminal law - Possession of dangerous drug for purpose of trafficking — Sentenced to 12 years imprisonment — Appeal against conviction and sentence — 4.1 kg of marihuana — Directions to jury on occupation of motor vehicle in drug offence — Joint enterprise — Trial judge gave adequate directions on joint enterprise — Appeal against conviction dismissed — Appeal against sentence allowed — Sentences varied to 8 years with hard labour.
Criminal law - Possession of dangerous drug for purpose of trafficking — Sentenced to 12 years imprisonment — Appeal against conviction and sentence — Whether trial judge erred in allowing respondent to cross-examine on previous convictions — Appeal against conviction dismissed — Appeal against sentence allowed — Sentences varied to 8 years with hard labour.
On 31st May 1996 shortly after 2:00p.m. the appellants were seen travelling in a motor vehicle in the Rio Claro district. Police Officers in a marked police vehicle kept them under surveillance until they turned into a village street off San Pedro Road and stopped at a dead end.
Upon searching the vehicle the police found on the back seat a large green garbage bag containing two black garbage bags with a quantity of plant and seed material resembling marijuana.
The appellants were arrested and charged for possession of a dangerous drug, namely cannabis sativa (L) Marijuana for the purpose of trafficking. They were tried before Mohammed, J and a jury and on 16th January 2006 the jury returned a verdict of guilty against each of them. They were each sentenced to 12 years imprisonment with hard labour. They appealed against their conviction and sentence.
On the 24th day of April 2007 we dismissed their appeals against conviction and varied the sentences of 12 years hard labour to one of 8 years hard labour to commence from the date of conviction. We indicated then that we would give our reasons at a later date. This we now do.
On 31st May 1996 the appellants left Port of Spain in a motor vehicle, which Nicholas Cadette had rented. Cadette was driving the vehicle and they set out for the Rio Claro district. Govia and Ravello were passengers in the vehicle.
Constables Scipio Mark and Kurt Jackson along with two other police officers were on mobile patrol duty in a marked police car in the Rio Claro district when around 2:00p.m. Constable Mark observed the appellants' vehicle proceeding in a southerly direction along Hamilton Trace. The police followed the vehicle and Constable Mark saw the appellant Cadette look in the direction of the police and he began to accelerate. Cadette drove the vehicle into a dead end street. He was pursued by the police and the vehicle eventually came to a stop.
Constable Mark identified himself to the three appellants. The police searched the vehicle and found the green bag on the back seat. A quantity of stems was protruding from the mouth of the green bag as it was partially open at the top. The appellants were cautioned and they all remained silent.
The appellants were taken to the Rio Claro Police Station where the bag and its contents weighed 4.1 kg. The appellants were subsequently charged with the offence. Both Constables Jackson and Mark gave evidence for the prosecution.
Cadette gave evidence on his own behalf and called three witnesses. According to his evidence, he lived at Morvant and was self-employed as a clothes vendor. He rented the vehicle and picked up the other appellants. He had known Govia for the past four years as he was in the same trade but had only known Ravello for a couple of months prior to the date of the incident. He said they were invited to Rio Claro to the family of Lystra Ravello and when they reached Rio Claro he parked the vehicle in front of the home of Ravello's family. He locked the vehicle and in company with Govia he went to a nearby bar where they had some drinks.
He further testified that on leaving the bar he met one Sydney whom he had known prior to that date and Sydney invited both him and Ravello to his home where a “wild meat lime” was in progress. He said that while he was in Sydney's yard a white Bluebird motor vehicle stopped and three armed police officers alighted from the vehicle. Constable Mark and Constable Jackson were two of the officers. They arrested him and placed him in the police vehicle. He further said that he was then taken to the place where he had parked the rented car and observed that the bonnet and trunk were open. The doors were also open and the glass turned down. He had not left it in that condition. He was subsequently taken to the Rio Claro Police Station where he met the other appellants.
Three persons namely, Kenton Sydney, Allan Charles and Andres Kanhai gave evidence on his behalf and said that they had seen him at Sydney's residence at various times that day.
Govia gave evidence on his own behalf. He said that he had known Cadette for about four years and Ravello for about two years. On 31st May Cadette met him at his home and they went to Angelina Terrace in Morvant where they met Ravello. They then travelled to Rio Claro arriving there about 9:30a.m. Cadette parked the car in a village street close to the home of Ravello's uncle. He saw Cadette secure the car and then all three of them walked to the corner. Ravello went to her uncle's home and he and Cadette went to a bar where they had a drink.
He further testified that while at the bar Cadette was called away by Joy Sydney's husband and Cadette left him and went into a vehicle with Sydney. Just then an unmarked vehicle came up and he was arrested by police officers handcuffed and placed in the vehicle. He was then taken to the spot where Cadette had parked the vehicle and he observed that it was open and the battery was on the ground. He also said that he was taken to the Rio Claro Police Station where he was assaulted by Constable Mark and other police officers. He denied any knowledge of the green bag or its contents.
Ravello also gave evidence on her own behalf. She said that she left Morvant around 7:00a.m. in company with Cadette and Govia who had agreed to take her to Rio Claro as they were going in that direction. She had known Govia for a few months before the date of the incident and Cadette for about 3 years. She said she sat in the rear of the vehicle. When they reached Rio Claro, Cadette and Govia went to a bar and she went to the home of Frank Ravello, her uncle, where she had a bath and changed her clothes. She then had something to eat and afterwards took a walk along the road. While walking along the road, a policeman whom she recognized as Constable Mark called out to her and asked her, “where the rest of the fellas.” She replied that she did not know. Constable Mark ordered her into a vehicle and she was taken to the Rio Claro Police Station. She denied that she was arrested in any vehicle nor was there any green bag with marijuana in the vehicle.
We turn now to the grounds of appeal. We shall deal first with the grounds filed on behalf of the appellant Govia as with the concurrence of the other attorneys Mr. Cazabon made his submissions first.
The first ground of appeal is that the trial judge erred in law by failing to direct the jury on the narrow meaning of the term “occupies” within the context of the Dangerous Drugs Act 1991.
It must be remembered that the case for the prosecution was that this appellant was apprehended sitting in the rear seat of the car.
Section 21 of the Dangerous Drugs Act No. 21 of 1991 provides as follows:
…. any person who occupies, controls or is in possession of any… vehicle…. in or upon which a dangerous drug is found shall be deemed to be in possession thereof unless he proves that the dangerous drug was there without his knowledge and consent.
Counsel for this appellant submitted that his mere presence in the vehicle, without more, could not place him in ‘occupation’ within the meaning of section 21. He further submitted that the term “occupier/occupies” has a very narrow meaning and the judge failed to assist the jury with its meaning.
Both counsel for the appellant and counsel for the State referred the court to several authorities where courts had to determine whether a person was in occupation of ‘premises’. Those cases came mostly from the Canadian jurisdiction. Counsel for Govia placed strong reliance on R v. Klyne [1958] 28 C.R. 255 a decision of the Court of Appeal in the Canadian Province of British Columbia.
However, in ( Michael Wiltshire and Jennifer Wiltshire v. Police Constable Wendell Flaveney S/F'do Mag. App. No. 2 of 2006) Weekes, J.A. after a careful analysis of the Canadian authorities including Klyne said that the decision in Klyne was based upon a general rebuttable presumption of law that where a husband and wife live together the husband is in possession and control of the premises in which they reside and in that context the presumption must be displaced by some evidence apart from the fact that the wife was merely living at the premises.
At page 8 of the judgment the learned Justice of Appeal said:
“The question for this court is whether any equivalent or similar general presumptions exists within our jurisdiction. We can find none. At common law no such general presumption exists.” In conclusion she said, “We are unable to find any common law or statutory provision in this jurisdiction to suggest the existence of a presumption resembling that in Klyne.”
We fully agree with...
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